The University of Missouri Board of Curators has responded to the AAUP with this letter about the firing of Melissa Click.
NEW: Click has this oped in the Washington Post, explaining her actions. She says:
If you have had any exposure to American media in the last four months, you know the quick decision I made to stand with the students, you’ve seen my inexperience with public protests, and you’ve heard my apologies for the mistakes I made while offering my support to the students working to make MU a more inclusive environment.
Among the debates and judgments the video footage of my mistakes has attracted, few have sincerely grappled with the sudden choices I had to make in challenging circumstances, and fewer still have earnestly asked whether my protected right to speak out as a US citizen requires that I must be perfect while doing so.
A few comments. First, the actions that got her fired occurred a month apart. Perhaps she would have been fired for the second one alone, in which she called for "some muscle" to remove a student reporter from a public space. In either case, it is hard to think of it solely as a "quick decision" or "sudden choice," given the prior event.
Second, her apology is undermined, in my opinion, by the repeated reference to her actions as "imperfections" while defending them as part of a "protected right to speech."
Finally, I agree with the AAUP that the Click case should first have been presented to a faculty body. On the basis of what I have read and seen, the penalty was far too severe. Click's steadfast insistence on self-justification, however, seems poorly calculated to save her job. Even if she succeeds in obtaining a court-ordered rehearing before a faculty group, everything that she has since said or written will probably be admissible to gauge the sincerity of her apology — and I predict that will be a problem for her.
Seems kind of unwise for the University not to just convene a faculty committee; I can't see what possible defense a non-tenured professor who did these things would have to termination.
TWBB,
Yes – maybe it's because I have had to do so much in non-employment at will regimes, but my instinct is always to dot i-s and cross t-s religiously in these situations. Why set yourself up with a process problem when you don't have to have one, when it can be easily avoided.
What would we do without the wisdom of these two wannabe academics?
Ms. Click is 44 years old. She really needs to grow up. She was out there protesting with teen aged and twenty something students. She should have never been involved…she is supposed to be a non-partisan university agent. It would have been far more productive and effective if she would have used her considerable writing and communication gifts in other non-confrontational ways. She could have set up a round table discussion or conference and invited all stake holders to participate. (A lot of people would have attended for the free Lender's Bagels and powdered donuts) She could have used her influence to get those same elected officials, who are now demanding her scalp, to sit down and have a meaningful conversation. Catch more flies with honey than with vinegar. Someone with her skills could get op-ed letters published all over the place. Those are far more powerful than screaming and yelling with a bunch of signs. The bottom line is that she lacks mature, seasoned judgment. He continued protestations, responses and letters demonstrate that.
Anon:
"wannabe academics"….don't kid yourself, I have no ambitions to be an academic – so far many of those on this site (such as yourself) have managed to make being an academic, especially a legal academic, come across as requiring lower moral standards than a used car salesman, an enthusiasm for intellectual dishonesty and a preening obliviousness to the practice of law combined with the ability to prance about in front of ingenues saying "think like a lawyer…." with an utter absence of any ability to in fact do so, let alone teach it.
Let me put it in more simple terms – the University was pretty certainly advised by academic "lawyers," i.e., law professors, because while law professors think they know what they are doing (better than any actual lawyer), in my experience (and yes I've been there) ignore details like reading the contract when they can go off on a con-law discussion or some other off-the-point activity. When advising universities in property law, employment law and technology law, practicing lawyers routinely double and triple the fee estimates to make provision for law professor interventions (and I am not joking.) I saw multi-million dollar technology partnerships with several major universities crater because of law professors interventions which meant that the legal arrangements could not complete – and in one instance, I personally had to decide to pull the legal resource off the deal, because it had become pointless – a year into agreeing something that should have taken two weeks – but the memos from the profs, they were glorious.
So Anon, the answer to who is advising the University here, and Click, is probably the same as the answer to who advised the University of Illinois in beginning of the Salaita situation, law professors, possibly even you Anon……..
And who knows, you could be a certain law professor from Chicago who famously announced that philosophers should be afraid because "my wife is a lawyer…." At least he had a fleeting moment of self-awareness (that promptly disappeared.)
As for my comment, practicing lawyers – you know, the sort of people you disdain while pretending to be in front of your students – will tell you that cases are mostly lost on pretty simple things, not big thorny questions of constitutional law. Nothing is more common in employment cases (and I can say this as a former GC with thousands of employees) than losing not on the merits, but because someone chose to ignore the procedures set out in the employment contract or employment manual, usually because that person was too focussed on the "rights and wrongs" of the situation. Process matters is one of the things lawyers end up explaining again and again to HR. While this may attract your sneery disdain, consider what that disdain says about your ability to teach law…
M-k – While I can't discount your own experiences, I would be hesitant to make hasty generalization. Universities generally have internal lawyers, and they rely on them, in part because law professors don't represent the University. Indeed, here, the university professor (Lubet) is agreeing with you that they should have followed the procedure. The odds that faculty members (who almost uniformly believe in academic freedom, and also worry about the same lack of procedure being applied to them) would say otherwise is pretty low.
Technology licensing may be a separate niche, but I can tell you that I've never once been involved in a technology licensing deal, despite having worked at two universities and having been the only IP professor at them each time. (Not that I wouldn't do a great, fast job – a professor who is delaying a technology deal may not want it to happen, IMO.) So, even there YMMV.
That said, I do have a substantive comment – one of the points of the board's letter is that it acted precisely because there was no faculty review being convened. My thoughts on this are:
1. The message to faculty is that if you wanted lesser punishment, you should have acted on this and meted out that punishment.
2. I find it interesting that the board couldn't just order a faculty panel – that is part that doesn't ring true. Maybe its view is that it didn't want to interfere with faculty governance affairs (a good thing), but this is an awfully backhanded way to show it.
Michael:
Agreed that a lot of universities have legal departments, which if they are wise they keep well away from the law school's professors (and indeed many of the successful ones do make sure the two are kept apart.) My experiences were that this arrangement works – but when the law faculty gets involved, or the internal counsel is effectively subordinate to members of the law faculty who pushed him/her for the role (and thus feel able to interfere) "look-out." Vast amounts of time end up being eaten away on someone's pet issue – which is usually of de minimis relevance, or alternately a DoA demand. You also get a lot of "the 10 commandments of [subject]" are – and then an unwillingness to understand that there are not necessarily 10 commandments. Inter alia, before it is suggested that law professors are the only ones to do this, the lawyer manqué (or brief-less barrister) is also a potentially tricky and difficult person when intervening in a deal, and there are a good few of those around these days.
In the instances in question it was not that the university did not want to do the deal – they really really wanted to do it – rather it was that the deal was either not important enough to the technology partner to justify the grief it was causing, or that the delays caused the logic to disappear well before the papering was done. I can see your point that law professors might see the firing of Click without the full process as raising a dangerous precedent (though whether they's think that through is a different question.)
The ability to keep the legal department out of the knitting tends to depend on the profile of the issue. Ms. Click's situation (as was Salaitas) was rather high profile, which is a bit like leaving jam in front of wasps. Decisions that involve university presidents, deans, etc. seem also to end up in the hands of those who have their ear, which is not necessarily the professional advisors.
Again, TWBB made a sensible point – and I think I made one too, which attracted a snarky and juvenile response from Anon – to which I probably responded in kind (but I'd say he earned it.) Click, on the facts, does not seem to have a great case, her cause is different from Salaita in many respects – but one key issue remains, a failure to ask "what are our own rules" and then follow those rules. Process is often substance, especially in employment matters. Actually, on your point 1 – perhaps Ms. Click would have been wise to push hard for a faculty panel ab initio (even though that would have been a disciplinary panel), then argued for a lesser sanction to it and after the lesser sanction argued that a greater one was no longer available to the university but this would have been a real "hail Mary" strategy. On point 2, I'm inclined to agree with you, it sounds like a bit of ex-post-facto justification for what may be a problematic screw-up.
One of the things that never ceases to surprise me is how claims and cases are lost on what are often obvious things – like not going through the process, (e.g., not convening a faculty panel.) It tends to happen particularly when senior or influential people are yelling "I want him/her gone, yesterday!" People simply don't say, hold on, let's look at the contract – the rule book – the employment manual – they do not read it, do not go through the process and down an otherwise sound case goes.
So you know so much about law schools you actually think that it is law faculty who advise Universities on matters like the Melissa Click affair? Or you think its law school faculty who impact the hiring of the University's counsel?
OMG, are you really that clueless, brackets?
I really didn't how little you actually know about academia….please do everyone a favor (and save yourself further embarrassment) and peddle your b.s. about law profs somewhere else.
anon, my experience comes from dealing with (certain) universities. From dealing with young lawyers hired on the strong recommendation of certain professors from the university's law school (and graduates thereof) and from the interventions of certain law professors in transactions. In your version law professors are a group of neuters (maybe they should be) who never ever get involved in University legal hiring decisions or in discussions of how to deal with high profile issues, that the law school dean has no participation with the overall university administration, really…….how uncharacteristically restrained of them….
University administrations in high profile matters like Click and Salaita tend to make (or at least drive) decisions at the President and board level, where the great and the good get together and collectively decide – " something must be done, now" – and they look to one of their number, usually a senior law school figure, who intones in a near echo "something can be done, now" and off they go on the on merry way and no one asks if the "can be done now" reflects reading the rules. Presented with the great and the good's fait accompli those down the line get to "but-me-no-buts just get on with it…." and that is when you end up with a process problem.
By the way, if you've been in any large organization, as say a GC you'll have encountered the same rush to action by boards and the same risk of someone with putative legal knowledge declaiming that things can be done, and found yourself having to say – "we don't know yet, that's a question that had to be looked at." The latter may be the right answer, but it is less attractive than the certitude someone else expresses.
Your experience seems to be navel gazing. Or maybe your in a law school that the rest of the institution regards with contempt – the sort of place whose graduates would, never conceivably be a candidate for a job with its host university – there are after all up to 100-150 out of 200 law schools that would fit that description.
By the way, I am not saying these issues are universal, but they do arise – and we'll run institutions implement measures to deal with them.
In the case of Click (and to a lesser degree Salaita) I'm speculating – but it's speculation based on experience of how these process problems arise – a rushed, "do something now action," supported by tacit or explicit input from someone available with apparent legal credentials but not actual knowledge.
Click will probably lose, but if she gets anywhere in her case it will be as a result of process failures. In Salaita's case the process failures led to a more substantial problem which was the validity of the underlying decision – it was interesting how long it took the UoI to wake up to the fact that they'd goofed.
The U of I did not "goof." It was very calculated and savvy how they handled a "problem" powder keg professor. They didn't want to get stuck with another Arthur Butts, I mean Butz of Northwestern infamy. For under 500K U of I ridded itself of hurtfully divisive professor. One that seemed to be hell bent on making a point rather than teaching. That being said, the U of I situation is completely distinguishable from Click. Click did not engage in protected speech. She committed a criminal act.
Depends on how you define "goof." Salaita cost the UoI Chancellor her job – I'm sure Wise did not see that as a price worth paying (and I suspect some more UoI people found the way they advised handling the Salaita situation a career limiting fiasco.) Then there was the AAUP vote, losing in court (and the precedent that sets) – I cannot see how anyone could describe the way in which the Salaita situation was handled as "savvy." Can you elaborate, how did it go well for UoI? Did it really cost "under 500k" or is that just what they paid Salaita??
With Click we will see, but it is possible that they have a problem from not following the procedure, maybe yes, maybe no. However, handing someone an issue that can be avoided is rarely wise. See Salaita….
Will it matter – can't tell, depends on the forum, depends on the judge. Personally, I'd always avoid having to make a harmless error argument, even in the alternative.
$500K is the figure U of I paid to "settle" the Salaita fiasco. The U of I excised a potential cancer. Northwestern is stuck with Butts, I mean electrical engineering professor Butz. He is a stain on their reputation. Nobody at NU has figured out how to get rid of him. Who the heck wants any of the ugliness that these two guys represent on a campus or at an intellectual setting? I wouldn't even want Professor Butts around changing light bulbs….
But, they might have been able to cut Salaita for less and not lose their jobs and reputation and spend a reputed million and a half in legal fees. It was very likely a result they could have had without the fiasco.
Brackets,
Don't you ever ever again criticize legal fees! How dare you. "We need some muscle here."
The most confusing part of the "wannabe academic" insult is nothing I said had nothing to do with academia specifically. It's the same kind of advice that I, and I would assume [M][a][c][K], would give to any organization that had formal procedures for termination and where there was no overriding need (e.g., safety) to get the employee out immediately.